Chapter 1: The Shape of the Law
C. Major contours of the tradition
5. Structure, order and patterns of growth in the corpus
173 In Chalcedon the canons are frequently read from "a book", βίβλιον or βίβλος: ACO 2.1.3.48, 60, 95,
96, 100 (references from Historike 21-22). See N. 6.4 for τὰ βιβλία τῶν ἐκκλησιαστικῶν κανόνων.
174 The most important of these are described in Burgmann et al. 1995; for examples of the former, Athos
Meg. Lav. B.93, contains the Coll14 with the Ecloga, and Oxford Laud 39 the NC14 with the Prochiron.
175 On the genre of the Apostolic church orders, see Steimer 1992,155-335, also Metzger 1985,1.33-54.
The best example of such liturgical and disciplinary "mixing" is probably the Didascalia apostolorum (ed. Funk 1905).
The structure of the Byzantine corpus of canons is constituted chiefly through the ordering of its constituent sources (i.e. Nicaea, Ancyra, Neocaesarea, etc.). Witnes to corpus orders may be found in five principal places: 1) actual orders of sources in manuscripts; 2) the order of sources cited under thematic rubrics in the systematic collections; 3) the orders mentioned in prologues, canons and external sources (e.g. Psellus or John of Damascus' references); 4) the orders of sources in manuscript table of contents; 5) and the orders of sources in synoptic or later commentary works. It generally assumed that the source orders of the last four types of texts represent real physical corpus configurations that at some point existed, and that have later been "frozen" in the textual tradition. Whether this is always strictly true or not, certainly such witnesses at least suggest a structure which someone tho
ses
s is
ught should exist or could
exist. T tages of how th T of outh of h a t e rces which are maintained more or less in their origina
aken together, all can be read as a series of witnesses into different s e corpus developed over time as a concept and a text.
Four fundamental patterns may be discerned from these witnesses. The first is less of a pattern than a constituent characteristic: the corpus is
structured by sources. This may seem to be a banal point, but it is extremely important. he canons do not exist in the tradition as disembodied norms or abstracted rules. Instead, rules are consistently designated according to their original source: canon 2
Nicaea; canon 4 of Gregory of Nyssa. The canons are always issuing from the m their original legislators. The corpus as a whole thus always emerges as very muc self-conscious accumulation and compilation of traditional sources of canonical legislation. In this sense, it is broadly florilegic in character: it is a collection of
raditional authorities on matters of church discipline.176 In this respect the Byzantine corpus is quite unlike modern codes in which rules, deriving their authority from the
issuer of the code, exist as more or less anonymous and rootless norms, and are easily subject to various levels of manipulation, reorganization and rationalization – and are easily modified, added or deleted. The Byzantine instinct is instead always to keep th corpus as a collection of traditional sou
l integrity.177 The authority of the sources seems to be linked to their issuance from their original, traditional source.
176 cf. Gallagher 2002,39-40. This tendency is enforced by the practice in some manuscripts of including
short ὑποθέσεις before the listing of each source's canons (most notably Beneshevich's Group A recension of the Coll50, Sin 26-69). These ὑποθέσεις, of varying length, give various historical details about the council in question, and occasionally, of the father. In the 12th C commentators, similar introductory comments can extend into sizable paragraphs.
This general allergy to abstracting and presenting rules as detached from their traditional sources is also shared by the civil legal tradition. The constitutions in the
CTh and the CJ all retain attributions to their original legislators from whom they derive their continuing authority. More surprisingly, even the fragments of the Digest, which are explicitly given their authority by Justinian, as if issuing from his own mouth,178 are still scrupulously sourced to their original (mostly pagan) authors – and so even in th Basilica.
e
rpus. Real legislation always remains
explici ywhere
ly never We may term this phenomenon "corpus persistence". A similar, if
weaker al
in the rces.183 This default is nevertheless regularly violated, and each violation may be read as
179 The only real exception in the CTh/CJC literature is the Institutes: but it is
merely a pedagogical handbook to the real co
tly connected to traditional sources. Legal work in late antiquity is ever broadly florilegic – certainly compilative.180
The second pattern of structuring, already noted at length, is the basic
mechanism of growth in the tradition: accumulation. The structure of the corpus always reveals that one always only adds new material on top of older material. New material thus almost never physically replaces or ejects older material: older material, once well established in the corpus, is eternal.181 Older rules may fall out of use, and be clear marked and recognized as such, but traditional sources, and even parts of sources, actually leave.
, dynamic, has also been occasionally observed in Byzantine secular leg literature.182
Third, the ordering of the corpus evinces an ongoing dialectic between hierarchical and chronological ordering. In the extant witnesses, the default ordering strategy is clearly chronological, just as it is in the disposition of laws under titles imperial codices, or, for the most part, in the Florentine index of the Digest sou
178 Deo auctore 6
179 And in the Digest, quite explicitly on account of "reverence for antiquity": see Tanta 10.
180 The preservative and compilative nature of late antique law is a commonplace of late antique source
histories. See for example Pieler 1997a,566-567, 580 (where he calls the Digest a "Florilegium of iu 591; see also the related narrative of (eastern) late antiquity's conservative and classicizing legal Geist, Kunkel 1966,153-154; Schulz 1953,278-285; Wieacker 1988,2.263-266. These tendencies should be understood within the context of the broader late antique and Byza
s"),
ntine cultural penchant – almost (with a ble; see Appendix A (13). of the lack of functioning abrogation principles; references in
its Digest xxx-xxxii.
cognitive tendency – for compilation and preservation. See, for a variety of contexts and periods, Aerts 1997a,648-649; Jenkins 1953,47-50; Lemerle 1971; Louth 2002; Maas 2005a,18-20; Odorico 1-7 critical review of older literature on Byzantine "encyclopedism").
181 The idea of "cleaning" the corpus is perhaps not altogether absent or impossi 182 See particularly the discussions
Introduction n. 44. Lokin 1994,82 astutely compares this tendency towards legal accumulation, with lack of a functioning derogation model, to the accumulation of church dogmas
conveying some ideological message about the nature of the sources.184 This hierarchization represents one of the very few ways in which the Byzantine corpus suffers
cyra
r" of the ek manuscript witness exists to the corpus without this
modific
finds
e core ent of these councils is
explici
m irst
,
– although quite superficially – a kind of systematic rationalization. The first and prototypical violation, made at the tradition's onset, is the prefacing of the Antiochian corpus with the Nicene canons, despite the fact that An and Neocaesarea were known to be older. This is a very conscious, and explicitly marked move, as already noted, and clearly indicated the Nicene "take-ove
collection. No Gre ation.185
The next consistent violation will be the relegation of Serdica (341) and Carthage (419) to after Chalcedon (451) in the expanded Nicene corpus. This is their standard position in the extant recensions of the Coll14, and the later tradition, and resonance in older western and Syrian collections.186 The Coll50 however placed Serdica in its chronological position, following Neocaesarea, and thus "within" th Nicene collection. In the Coll14, the subordinate placem
tly glossed as a relegation or marginalization.187
The third violation is the placing of all patristic material after the conciliar aterial.188 The former is clearly subordinate to the latter, as made explicit in the f
Coll14 prologue.189 At no point in the Byzantine tradition is the rule material thus considered so homogenous and generic that a true chronological corpus emerges in which the councils and patristic material are mixed in chronological order (e.g. Ancyra Neocaesarea, Peter, Nicaea, Athanasius, Gangra, Antioch, Basil, Laodicea, etc.). The
04-110; 1989,92- ce Καρθαγένῃ τῷ χρόνῳ τινῶν τῶν όδων προτερεύουσαι, μετ᾽ αὐτὰς ἐτέθησαν διὰ τὸ πολλὰ περί τινων ἐπιχωρίων ἤγουν τῶν
184 As probably true for the privileging of Julian and Papinian on the Florentine list: the former is
privileged as providing the model digesta, the latter as simply a particularly respected jurist. Schulz 1953,145,319.
185 The only exception is perhaps Blastares' survey of the sources in his Syntagma (1335; RP 6.6-26), but
this is an historical treatment, akin to synodical histories, not a listing of the corpus per se. The east Syrian tradition, however, does later move Nicaea back into its chronological place. Selb 1981,88,107.
186 Thus they appear in more marginal locations in the Syrian synodika (see Selb 1981,1
102, 140-145), and both are post-positioned after Chalcedon in Dionysius II, while in the non-extant Dionysius III both were apparently omitted explicitly because of doubts about their universal acceptan ("quos non admisit universitas"; see Preface III, Somerville and Brasington 1998,49).
187 On account of their "local" western content: ἡ δὲ ἐν Σαρδικῇ καὶ ἐν
λοιπῶν συν
δυτικῶν μερῶν διορίσασθαι. (In the scholion ἰστέον to the table of contents of the Coll14; RP 1.12)
188 Tarasius, however, generally follows II Nicaea in the manuscripts. 189 RP 1.6.
patristic material itself tends to be arranged chronologically, however, as in Trullo 2, b other orders, sometimes evading explanation, are not unknown.
ut cy to n II with the l council rder in e ch fading into the 190
The fourth major violation is the movement of all later ecumenical conciliar material to a position immediately following Nicaea – i.e. before the older Antiochian corpus sources. This may be understood as another aspect of the general tenden assimilate ecumenical material to Nicaea, and as an extension of the original Nicene prefacing. Its effect is to create a new hierarchical distinction between "general" and "local" councils. In the Greek tradition, this ordering is first certainly witnessed i Nicaea 1 (787) and the recension Beneshevich associates with this council (the "Tarasian" or "systematic").191 It becomes a regular order in the manuscripts only Zonaras and Balsamon, although even in these manuscripts it never entirely ousts more traditional order of the Coll14 source listings (as found in Trullo 2 and the traditional table of contents of the Coll50 and Coll14) in which the later ecumenica
s usually follow Constantinople and Chalcedon, which themselves follow Laodicea.192 The result is that very often the two orders (or even more) co-exist together in the same manuscript – "piled" on top of each other – with the older o the prologues and systematic references, and the newer one in the corpus itself.193
The fourth major structural dialectic, and the most complex, is that between cor material and appendix material. This dialectic, implicit in our discussion until now, is a phenomenon by which at any given moment one group of canons is marked as
particularly standard, central and inviolable versus other material in the collection or manuscript that is marked as newer, more peripheral, variable, and perhaps optional – i.e. more appendix-like. It is never a concept that is articulated doctrinally, nor does it lend itself to precise definition, but it nevertheless constitutes a consistent, tangible and essential part of the tradition as a whole. It tends to emerge as a graded and diffuse spectrum of implied worth and value – rather as multiple concentric rings, ea
next – indicated by a wide variety of markers. Although the exact boundaries between different "levels" of sources can be blurry, it allows one at any given moment
190 Joannou offers a brief survey, Fonti 2.xix-xx. For an example of an order by rank of see, Coislin 364
(described Sin 160-161); for an order in which Basil is favoured, but otherwise the rationale for the order is difficult to discern, see Rome Vallic. F. 47 (described Sbornik 266-7).
191 The relevant section of II Nicaea 1 reads ..τοὺς θείους κανόνας ἐνστερνιζόμεθα...τῶν πανευφήμων
ἀποστόλων, τῶν τε ἕξ ἁγίων οἰκουμενικῶν συνόδων καὶ τῶν τοπικῶς συναθροισθεισῶν ἐπὶ ἐκδόσει τοιούτων διαταγμάτων καὶ τῶν ἁγίων πατέρων ἡμῶν... The four-council order of the synopsis tradition associated with Symeon Magister may, however, represent an earlier version of this ordering strategy.
192 Thus, for example, in manuscripts of the Tarasian recension, as edited in Beneshevich's Kormchaya. 193 On this, see Stolte 1994,187.
to identify at least some material that is clearly of the "core" and some that is not. It subsumes and presumes the dynamics of accumulation and hierarchization.
over time. All material from uces the impression of s are "marked" as core in in markers are as follows:
and additions continu rked e. s συνόδω rd
e "council" of Carthage, and a
The markers of the core material are numerous, and change consciously or unconsciously function to distinguish some types of others. They often overlap and contradict each other, which prod
a highly nuanced, graded spectrum of sources: some source one way, and not in others. The ma
numbering schemes which differentiate older core presence and position of sources in prologues
presence and position of sources in manuscript tables of contents presence and position of sources in systematic references
presence and position of sources in definition canons (i.e. Trullo 2 and II Nicaea 1)
mentions in other literature
presence and position in manuscripts themselves
The very earliest traces of this phenomenon may be detected in the use of ous numbering in the original Nicene (and probably Antiochian) corpus, highlighted above. Here an earlier "core" of material is demarcated by continuous numbering. Newer material appear with individual numbering, quite obviously ma as tacked-on or added: appendix-like, at least in appearance. Eventually this material too is subsumed by the continuous numbering, in effect assimilated into the cor
In the 6th C, the continuous numbering system falls out of use in the Greek world, but a number of other signals now indicate core material. Thus the prologue of the Coll50 refers clearly, and quite casually, to what is already an established core structure; so much so in fact, that it even has a name: the "Ten Synods".194 The source included in this "Ten Synods" are enumerated in the Coll50's corpus τάξις τῶν
ν. To this core it prefaces the Apostolic canons – apparently already a standa addition – and post-fixes the Basilian canons. The result is a three-stage corpus: first and foremost the Apostles, outside of the synodal list, which here probably implies precedence, an almost qualitative difference; then the neatly sealed Ten Synods; then, again outside of the synodal list, Basil –here almost certainly implying subordination.
The introductory structures of the Coll14 also reference the Ten Synods as a standard core of canons, and then goes on to give a relatively long explanation for its major additions, including (very briefly) the Apostles, th
large n f
ms to have carefully
cited ev l – i.e.
ack
oll14 (and Coll50).
(Indeed n
obviously o
In
but
umber of other fathers.195 Both in the prologue itself, with its differentiation o the material (Ten Synods taken for granted; Apostles virtually for granted; Carthage and fathers in need of explanation), and in the traditional listing, the πίναξ, where Carthage, Serdica, and the fathers are placed after the older Apostles + Ten Synod core, a clear sense of core and "new core" material is again evident.
This pattern carries through in the patterns of referencing under the thematic titles of the Coll14. As already alluded to, the original Coll14 see
ery canon of the older core Apostotlic + Ten Synods + 68 canons of Basi the Coll50 core. The only "selection" is in the newest stratum of material just attached to the core by the Coll14 author himself, i.e. in Carthage and the first letter of Basil. This material is thus again subtly "downgraded". Later, this material will be added b into the Coll14 references – it has achieved higher "core" status.
Other patterns of core-appendix marking may then be found in the slow processes of corpus expansion evident in the later recensions of the C
, the recensions have been recoverable chiefly because the manuscripts contai different fossilized orderings of the corpus sources such that the newest sources are
utside an older "core", i.e. recensional form.) Only gradually are the new sources admitted into the older cores, slowly moving up through the hierarchy of sources – which thus emerge as yet more inner rings within the core.
The fortunes of Trullo in the manuscripts provide the best illustration. In the very earliest witnesses, Trullo appears physically virtually outside of the corpus, even after the patristic material.196 Later, however, it may be found to have leapt in front of
the patristic material, but still after all the earlier conciliar material, even the relegated Serdica and Carthage (and Constantinople 394).197 This position will become its classical Coll14 position; it has a difficult time penetrating beyond this earlier core structure. Nevertheless, in a few manuscripts attempts are made to do precisely this. Venice Nan. 226, for example, Trullo is now pushed before Carthage (Serdica remains in the Coll50 place). Similarly, in Oxford Barocc. 26 Trullo is placed after Serdica, before Carthage, and in Venice Bessarion 171 Trullo is placed immediately after Chalcedon (extremely unusually, Serdica and Carthage are here simply omitted).198
e, and also the corpus references in Beneshevich's Coll14 index to the Tarasian recension danian and Coislin redactions (Sbornik 177-188, 188-191).
195 See chapter 2.A.4.
196 Beneshevich's First Redaction, (Sbornik 230-242); so similarly the Synopsis attributed to Symeon the
Logothete, abov (Kormchaya).
197 Beneshevich's Lau 198 Sbornik 313-321.
These a
n –
883 .1.58
s, which is after Protodeutera. Hagia Sophia in fact never seems t ils s, as , y. It moved Trullo to a more prominent position in the c
ttempts may be viewed as experimental – they do not catch on. Nevertheless they demonstrate attempts to "push" Trullo more clearly into the core. Only with the hierarchical rearrangement of the corpus, in Beneshevich's Tarasian recension, will Trullo, as one of the general councils, finally physically appear right after Chalcedo with all other councils following it. Trullo has "made it" into the core of the core.199
Similar "journeys to the core" may be suspected for II Nicaea and the Photian councils. For the former, in Oxford Laud. 39, which seems to contain one of the oldest recensions (and which is perhaps a 10th C manuscript), one finds II Nicaea separated from Trullo (which it usually accompanies) by Cyprian.200 In contrast, in another recension, Beneshevich's Partes Distributa, Cyprian has been gently pushed after II Nicaea.201 Protodeutera and Hagia Sophia also take some time to be accepted into the collections – and the latter never seems fully integrated. Both are mentioned in the prologue to the Coll14, but are missing, for example, in Oxford Baroc. 26, Rawl. G (both 11th C). In Vatican 2198 both are present but following Cyprian (after II Nicaea). Hagia Sophia, in particular, is often absent, for example in Vienna hist gr. 56 (a. 1000), or Oxford Baroc. 196 (11th C). In Athos Iver. 302 (14th C) Hagia Sophia is found, but curiously after Gennadiu
o make it into the table of contents of even the Photian redaction, and only sometime later, certainly by the 11th C, do references to it enter the Coll14 titles.202 In the 12th C Aristenos still does not offer commentary on either council. These counc are thus not quite "marked" as sufficiently core material. This only happens, it seem with the commentators.
This gradual movement of material into the core is very curious. One might expect that one chance 7th C manuscripts might survive showing, for example, Trullo tacked on after the corpus for purely practical reasons – the newest legislation w simply added to existing manuscripts. But the fact that these manuscripts are much more recent and contain plenty of material following Trullo (II Nicaea, Protodeutera etc.) indicate that Trullo is being left in a subordinate positions more intentionall would have been exceptionally easy to have
orpus, perhaps after Chalcedon, or certainly before the fathers, in every subsequent manuscript recopying since the late 7th C. Instead, a much more hesitant,
199 Sbornik 288-307. 200 Sbornik 177-188. 201 Sbornik 192-199.
202 Sbornik 96-100. Pitra 2.450 does note one later manuscript (Vatican Barb. 568) that includes Hagia